Service Employees Intl. v. NLRB, 995 F.3d 1032

Background

Janitorial employees at 55 Hawthorne St., San Francisco, jointly employed by Preferred Building Services and subcontractor Ortiz, sought union help over low wages, poor conditions, and sexual harassment by Ortiz.
With SEIU Local 87’s assistance they picketed the building on Oct. 29 and Nov. 19, carrying signs naming Preferred as the target and distributing leaflets that explained they worked for Preferred and cleaned KGO Radio’s offices; leaflets asked tenants like KGO to take corporate responsibility.
Harvest Properties (building manager) met with union representatives during the Nov. 19 picket; Preferred subsequently terminated its contract with Harvest and Ortiz fired several picketers.
The Union filed unfair labor practice charges; an ALJ found Preferred and Ortiz unlawfully discharged employees in retaliation and ordered reinstatement.
The NLRB reversed, holding the picketing was unlawful secondary picketing under § 8(b)(4)(ii)(B) (aimed at neutrals to force them to cease doing business with Preferred) and dismissed the complaint; the Union petitioned for review.
The Ninth Circuit held the Board’s finding that the picketing had a prohibited secondary object was not supported by substantial evidence, concluded the Moore Dry Dock criteria (including that the dispute was clearly with the primary employer) were met, and remanded.

Issues

Issue	Plaintiff's Argument (Union)	Defendant's Argument (Board / Preferred / Ortiz)	Held
Whether the picketing violated § 8(b)(4)(ii)(B) by having a secondary object to force neutrals to "cease doing business" with Preferred	Signs and leaflets made clear the dispute was with Preferred; picketing was primary activity	Leaflet language and statements at the Nov. 19 meeting indicated the public could believe tenants/neutrals (e.g., KGO, Harvest) were the employer and were being coerced	Court: Board lacked substantial evidence of a secondary object; reversal unsupported and remanded
Whether the Moore Dry Dock fourth criterion (discloses clearly that dispute is with primary employer) was satisfied	Prominent signs said "PREFERRED BUILDING SERVICES UNFAIR!" and leaflets identified Preferred as employer; any tenant reference was contextual	Leaflet language ("their janitors") obfuscated the primary target and could mislead passersby	Court: Fourth criterion met when signs and leaflets are read together; Board erred in finding it unmet
Whether independent evidence (meeting comments, tenants being "upset", Harvest's actions) rebutted the presumption of lawful primary picketing	Statements at the meeting did not show intent to coerce Harvest; tenants’ upset reaction reflected sympathy, not evidence of secondary coercion	Union president’s remark that picketers would "keep showing up" and tenants’ upset reaction showed objective to pressure neutrals like Harvest	Court: Those statements and reactions did not demonstrate an intent to coerce neutrals; insufficient to rebut the presumption of lawfulness

Key Cases Cited

NLRB v. Operating Engineers, 400 U.S. 297 (1971) (distinguishes primary vs. secondary picketing and explains "cease doing business" standard)
Nat'l Woodwork Mfrs. Ass'n v. NLRB, 386 U.S. 612 (1967) (primary picketing may affect neutral third parties without becoming unlawful)
NLRB v. Denver Bldg. & Constr. Trades Council, 341 U.S. 675 (1951) (statute balances unions' pressure tactics and protection of neutrals)
Electrical Workers v. NLRB, 366 U.S. 667 (1961) (Moore Dry Dock criteria create a rebuttable presumption that picketing at mixed sites is primary)
Universal Camera Corp. v. NLRB, 340 U.S. 474 (1951) (articulates the substantial-evidence standard for agency findings)
Carpenters v. NLRB, 357 U.S. 93 (1958) (discusses permissible communications/negotiations with neutral employers absent coercion)
Ramey Constr. Co. v. Local Union No. 544, 472 F.2d 1127 (5th Cir. 1973) (success or influence over neutrals does not convert lawful primary picketing into unlawful secondary activity)
United Ass'n of Journeymen v. NLRB, 912 F.2d 1108 (9th Cir. 1990) (agency findings must be read in context; evidence considered as a whole)